Dylan Welch, Ben Grubb, Bianca Hall and Lucy Battersby

The Attorney-General, Nicola Roxon, appears to have swung her support behind a controversial plan to capture the online data of all Australians, despite only six weeks ago saying ''the case had yet to be made'' for the policy.

The data retention plan - which would force all Australian telcos and internet service providers to store the online data of all Australians for up to two years - is the most controversial element of a package of more than 40 proposed changes to national security legislation.

If passed, the proposals would be the most significant expansion of national security powers since the Howard-era reforms of the early 2000s.

In a speech to be delivered at the Security in Government conference in Canberra today, Ms Roxon will say that law enforcement agencies need the data retention policy in order to be able to effectively target criminals.

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''Many investigations require law enforcement to build a picture of criminal activity over a period of time. Without data retention, this capability will be lost,'' she will say, in a draft of the speech provided to Fairfax Media yesterday.

She will also say technological advancement since the advent of the internet is providing increasing room to hide for criminals and those who threaten Australia's security.

''The intention behind the proposed reform is to allow law enforcement agencies to continue investigating crime in light of new technologies. The loss of this capability would be a major blow to our law enforcement agencies and to Australia's national security."

But in an interview with Fairfax Media in mid July, Ms Roxon appeared to have a different view. ''I'm not yet convinced that the cost and the return - the cost both to industry and the [privacy] cost to individuals - that we've made the case for what it is that people use in a way that benefits our national security,'' she said.

''I think there is a genuine question to be tested, which is why it's such a big part of the proposal.''

Her apparent change of mind may be a result of conversations with the Australian Federal Police, who have long pushed for mandatory online data retention. Neil Gaughan heads the AFP's High Tech Crime Centre and is a vocal advocate for the policy.

''Without data retention laws I can guarantee you that the AFP won't be able to investigate groups such as Anonymous over data breaches because we won't be able to enforce the law,'' he told a cyber security conference recently.

''It sounds good and something sexy that politicians should get behind. However, it doesn't stop crime, it builds a massive dossier on everyone at millisecond resolution, and creates more work and challenges for law enforcement to catch actual criminals.

''The problem isn't too little data, the problem is there is already too much data.''

In a heated submission to the inquiry, Victoria's Acting Privacy Commissioner, Anthony Bendall, dubbed the proposals ''characteristic of a police state'', arguing that data retention in particular was ''premised on the assumption that all citizens should be monitored''.

''Not only does this completely remove the presumption of innocence which all persons are afforded, it goes against one of the essential dimensions of human rights and privacy law: freedom from surveillance and arbitrary intrusions into a person's life."

ISP iiNet said government had failed to demonstrate how current laws were failing or how criminals and terrorists posed a threat to networks, and said asking carriers to intercept and store customers' data for two years could make them ''agents of the state'' and increase costs.

A joint submission from telco industry groups argued it would cost between $500 million and $700 million to keep data for two years. It called for full compensation from the government's security agencies.

The Australian Federal Police and the Australian Taxation Office were among the few supporting the proposal to retain telecommunications data.

The ATO said the proposal would be consistent with European practices and that being able to access real-time telecommunications data would allow it to ''respond more effectively'' to attempts to defraud the Commonwealth.

The AFP, in its submission, said interception capabilities were increasingly being ''undermined'' by fundamental changes to the telecommunications industry and communications technologies. It said telco reform was needed "in order to avoid further degradation of existing capability".

Through the use of case studies, the AFP argued that on numerous occasions it had been restricted by what it could do under current telecommunications laws, and said that many offences went un-prosecuted because of this.

Costs may be passed on to consumers

The AFP conceded that the volume of data and its retention by telcos for use as evidence for agencies presented "challenges", but didn’t disclose how such challenges could be tackled.

Such challenges were highlighted in submissions. Mr Bendall said smaller ISPs, for instance, "may not be able to afford the data storage costs, and these costs may be passed on to consumers".

"It would appear that public support for this type of proposal is largely absent," he said.

Users may abandon web

Mr Bendall also said that data retention could "create an extreme chilling effect" not only on technology but on social interactions, many of which are now conducted solely online.

"Users may move away from using online services due to the fear that their communications are being monitored," he said. "Simply put, the proposal could mean that individuals, due to concerns about surveillance, revert back to offline transactions.

"If this occurred, it would affect existing efficiencies of both businesses and government," he said.

The Australian Privacy Foundation was just as scathing.

"Too many of the proposals outlined ... would herald a major and unacceptable increase in the powers of law enforcement and national security agencies to intrude into the lives of all Australians," it said, adding that the discussion paper was "misleading, and probably intentionally so".

Fears for journalist's sources

It’s not just privacy advocates and telcos that expressed concern with the proposals, but the journalist union, the Media Entertainment and Arts Alliance. In its submission it said it was concerned that any expansion of interception powers and the powers of intelligence agencies had "the potential to threaten press freedom".

"There is considerable concern about the power of police and intelligence agencies to intercept communications, a concern not given proper consideration in the terms of reference," the MEAA said.

Online users' lobby group Electronics Frontiers Australia raised similar concerns to others but pointed out that one of the 40 proposed changes to national security legislation, which required people to divulge passwords, could lead to self-incrimination. It said should such a law be enacted it would undermine "the right of individuals to not co-operate with an investigation".

The lobby group also highlighted concerns with another proposal which would allow the Australian Security Intelligence Organisation to use an innocent person's computer to get into a suspect's computer. "The proposal that ASIO would be permitted to 'add, delete or alter data or interfere with, interrupt, or obstruct the lawful use of a computer' could lead to some very serious consequences," it said.

Such consequences could include, it said, pollution of evidence, potentially leading to failures of convictions. It could also provide the means for evidence to be "planted" on innocent parties, it said.

221 comments

Well the one way around this is to use a internet cafe, not that hard to make a fake hotmail or google account. Its one big fail for ATTORNEY-GENERAL Nicola Roxon and this labor government.

Commenter

Pikkiepik

Location

Brisbane

Date and time

September 04, 2012, 1:39AM

Mate, don't be so naive. The Liberals WILL NOT REPEAL these laws. The state rolls on, irrespective of whether the Coke or Pepsi parties are in charge.

Democracy is a scam. What difference does it make whose boot it is treading on your neck?

There are the rulers and there are the ruled. The pattern should be crystal clear by now. Those that lust for power and dominion will always infiltrate the state and use it to boss people around and take their money.

What's the solution? Withdraw consent:

"...Resolve to serve no more, and you are at once freed. I do not ask that you place hands upon the tyrant to topple him over, but simply that you support him no longer; then you will behold him, like a great Colossus whose pedestal has been pulled away, fall of his own weight and break in pieces..."

- The Politics of Obedience: The Discourse of Voluntary Servitude by Étienne de la Boétie, written 1552-53

Commenter

Libertarian

Date and time

September 04, 2012, 2:14AM

Not a peep from the Shadow Attorney General or the Leader of the Opposition against these proposed laws. Where's you messiah now, Pikkiepik? How about, rather than just blind Labor-bashing, you call Abbott's office today, ask for his official opinion on the proposed laws, and get back to us.

I think you'll be unpleasantly surprised when you get a whole lot of double-talking bureau-speak which, when translated into simple English, says "we won't block this legislation".

This goes beyond political flavours. The spooks and the grim-reapers at the ATO want unprecedented power. ATO needing to monitor activity in real time - what a load. They will have to come up with much more compelling reasons than some nebulous excuse about "responding more effectively" to attempts to defraud the Commonwealth. The heat needs to be turned right up on these people until we find our exactly what they wish to monitor, and exactly why.

Commenter

PeteH

Location

Sydney

Date and time

September 04, 2012, 5:02AM

When this came up a few weeks ago I contacted my federal MP - a 'Liberal', Ross Vasta

They are totally behind it...

Here's part of his response- read past the verbiage and it's a simple yes to surveillance...

"The Coalition has strong credentials when it comes to national security, fighting crime and border protection. Any time changes are proposed to laws relating to these areas of public policy, the highest degree of scrutiny and diligence is called for.

The Coalition is very well represented on the Joint Committee for Intelligence and Security, the Parliamentary Committee currently considering this matter and has always believed that our national security and law enforcement agencies need to be supported effectively to enable them to protect Australians from those that would do us harm, both domestically and internationally."

Commenter

Jeff Poole

Location

Brisbane

Date and time

September 04, 2012, 7:07AM

witopia.net

Commenter

mOg

Location

Any city I choose

Date and time

September 04, 2012, 7:13AM

"Well the one way around this is to use a internet cafe"

All smartphones have GPS facilities. The goonsquads will be able to track everyone's location (including internet cafes) every second of the day for the past 2 years.

Commenter

lookin

Location

ovayasholda

Date and time

September 04, 2012, 8:25AM

@PeteH. Apportion blame where it's due - at the feet of the ALP who are introducing this plan.

Commenter

Dave

Location

Western Suburbs

Date and time

September 04, 2012, 8:38AM

@DaveH - apportion blame with any party that supports the legislation and refuses to repeal it if elected to government.

Commenter

rudy

Date and time

September 04, 2012, 9:02AM

I have no problem with it as long as I have access to their e-mails, smart phones & surfing history. If they can see mine I want to see theirs.